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Intellectual Property Copyright
Copyright is a form of protection provided by federal law that gives authors of “original works of authorship” certain exclusive rights in those works. Congress derives its power to regulate copyrights from Article I, Section 8 of the US Constitution. Copyrights in the United States are generally governed by Title 17 of the United States Code, also referred to as the 1976 Copyright Act. To view the 1976 Copyright Act and its many amendments, click on the following link: https://www.copyright.gov/title17/ US copyright protection is available to both published and unpublished works and gives the copyright owner exclusive rights to (and the ability to authorize others to):

Copyright Notice and Protection
U.S. copyright laws give protection to authors and artists for “original works of authorship.” Such works include literary and dramatic works, music, choreography, paintings, sculpture, sound recordings, and movies. The copyright holder has the exclusive right to take certain actions related to commercial exploitation of the work, or to authorize others do so.

As copyright laws have been amended over the years, obtaining and protecting a copyright has become simpler in some ways. For example, registration of the copyright is no longer required. A copyright is deemed to exist in any original work at the time it is created and “fixed” in a tangible medium of expression from which it can be perceived, reproduced or otherwise communicated, directly or indirectly, with the aid of a machine or device. Registration with the U.S. Copyright Office (USCO) may, however, be necessary to protect the copyright in court.

Fair Use and Other Exceptions to the Enforcement of Copyright Law
Copyright protection in the U.S. has existed since the formation of the Constitution, and coverage has continually been expanded to keep pace with new technology and other developments, such as copyrights for sound recordings, computer programs, choreography, etc. Creators of original works that are permanently fixed in a tangible medium may obtain certain exclusive rights to exploit their works, including the right to:

Reproduce (copy) the work

Create a “derivative work”- a new work based on the original.

Publish or distribute the work.

Publicly perform the work, such as performances of musical compositions.

Rosa Parks Sues OutKast Over Song Title
In December 2003, the U.S. Supreme Court refused to hear an appeal by the hip-hop duo OutKast and their record label affiliates. By denying OutKast’s petition for review, the justices let stand an appellate court ruling that reinstated portions of Rosa Parks’ lawsuit against the musicians. In effect, the Supreme Court’s refusal to hear the case allowed Parks to proceed with her lawsuit in a lower federal court.

Background
In December 1955, Rosa Parks attained national notoriety by refusing to relinquish her seat to a white passenger and move to the back of a segregated bus. Her subsequent arrest sparked a 381-day bus boycott in Montgomery, Alabama, led by the Reverend Martin Luther King, Jr. The boycott, a significant event in the civil rights movement, ultimately led to court rulings that desegregated public transportation nationwide.

Controlling the Commercial Use of a Celebrity’s Identity
Generally, copyright and trademark laws protect the exclusive rights of an original author in the commercial value of their work. Ancillary to the intellectual property rights of original authors, however, is a celebrity’s right to control the commercial use of identity under the “right of publicity.”

Originating from state law, the right of publicity governs the exploitation of a celebrity’s name, likeness or characteristics. Accordingly, the right of publicity can be defined as the inherent right of every human being to control the commercial use of his or her identity.

The Changing Face of Fair Use
Fair use is a principle of copyright grounded in the idea that the public is entitled to use excerpts of copyrighted materials without permission in the publishing of commentary and criticism. Absent such permission, copyright owners would be completely immune to any negative response to their work. The difficulty for intellectual property law is, of course, the interpretation of fair use, which most often becomes subjective and a matter of degree. If a copyright owner doesn’t agree with your interpretation of what or how much use is fair then you risk being challenged for copyright infringement. And one of the tests in such a dispute will hinge on whether your use of the material could deprive the copyright owner of income.

As a world community we communicate more and more in a language that is audio-visual and internet-based. Fair use laws attempt to keep the lines of communication and artistry open to allow culture and language to flourish.

Fair Use in the Digital Age – Authors Guild v. Google BooksAuthors Guild v. Google Books is a seminal decision regarding application of the fair use doctrine in the digital age. Starting in 2004, Google began building a vast, publicly available digital library, comprised of scanned and digitized copies of more than 20 million books from major research libraries. Readers can search the resulting database, aptly called “Google Books,” using keywords and phrases, and find titles and page numbers, along with some snippets of text containing those key words. Google asserted the use was fair, transformative, and allows readers and researchers to locate books they may never have found. The Authors Guild argued that the use was copyright infringement, in that Google Books is a commercial venture profiting from the display of copyrighted work, and its members should be compensated.

The Second Circuit Court of Appeals found in favor of Google in the case, and wholly rejected the Authors Guild’s claim that Google Books infringes its members’ copyrights. The court came to this conclusion by applying the fair use doctrine, and particularly the concept of transformative use, which is the first fair use factor. Breaking down each of the fair use factors, the decision was a clear victory for Google, and arguably the tech sector over the creative sector.

Google Grapples with Fair Use & Market Harm Once Again
Over the years, Google has asserted the fair use doctrine in more than one lawsuit as a defense to using copyrighted material without permission. In a previous article, we discussed Google’s fair use win in the case Authors Guild v. Google. But courts don’t always see eye-to-eye with the Internet giant. On March 27, the Court of Appeals for the Federal Circuit reversed a jury verdict of fair use in Goggle’s favor, concluding instead that Google’s use of protected works was inherently unfair. As a counterpoint to Authors Guild, let’s look at Oracle America v. Google), especially regarding the fourth fair use factor—market harm.

The Facts
In 2005, Google began developing its Android mobile operating system. However, to use Java (the preferred programming language for mobile devices), Google needed software application programming interfaces (APIs) owned by Oracle America. For a contracted fee, Oracle licenses the APIs to software developers, and Google and Oracle did enter into negotiations for a licensing agreement. But they never made a deal. Rather, when Google’s Android team couldn’t develop its own APIs, Google copied verbatim 11,500 lines of Oracle’s code as well as the structure, sequence, and organization of 37 Java API packages.

Oracle sued for copyright infringement, and, in 2012, a jury found Google had copied protectable expression from the APIs but deadlocked over whether Google’s use was fair use. But then, after the verdict, the district court held that the APIs were not copyrightable after all, setting aside the jury’s finding of infringement. That ruling was reversed in 2014 by the Federal Circuit, which remanded the case for a new trial to decide the fair use question. In 2016, a jury found in Google’s favor, which brings us to the appeal and, as of March, 2018, Google’s loss.

How Market Harm Prevents Google from Successfully Asserting Fair Use
After finding that Google’s use was not transformative because Google did not alter the Java code with “new expression, meaning, or message (Fair Use Factor #1);” that the nature of the copyrighted work was functional but still protected (Fair Use Factor #2); and that the extent of the copying was neutral (Fair Use Factor #3), the court looked at market harm (Fair Use Factor #4). Market harm refers to the effect of the use of a copyrighted work on the potential market for or value of that work. In this case, the court found clear market harm.

In Authors Guild v. Google, the court decided Google’s use of copyrighted material wasn’t a meaningful substitute for the works in question—thus, no market harm. Here, the court found Android and Java to be direct competitors in the market for mobile device software, with Java having been used in smartphones and tablets before Android entered the marketplace. Moreover, “Android’s release effectively replaced Java SE as the supplier of Oracle’s copyrighted works… This superseding use is inherently unfair.”

The Android system is hugely successful, and (the court noted) “devastating” to Oracle’s licensing strategy. Many consumers switched to Android and other Java customers, such as Amazon, demanded discounts. If nothing else, this case shows that when evidence of market harm is clear—and not conjecture—fair use is very hard to prove.

The Abercrombie Formulation: Generic, Descriptive, Suggestive, Arbitrary and Fanciful Marks
The Lanham Act, the federal trademark statute, protects marks that perform sourceidentifying functions. Specifically, under the Lanham Act, a person must use or intend to use a mark to “identify and distinguish [his or her goods]…from those manufactured or sold by others and to indicate the source [of the goods].” In essence, trademark law places a premium on marks that are distinctive.

Following the “classic formulation” set forth by a federal appeals court in Abercrombie & Fitch Co. vs. Hunting World, Inc., courts frequently classify marks into five different categories. In order of generally increasing distinctiveness, these categories of marks are: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; and (5) fanciful.

In 1997, Aqua released the album Aquarium, which features the song “Barbie Girl.” In the song, a female band member, who calls herself “Barbie,” sings the lyrics in a high- pitched voice: “I’m a Barbie girl, in my Barbie world / Life in plastic, it’s fantastic / You can brush my hair, undress me everywhere / Imagination, life is your creation.” In response, another band member (“Ken”) requests of her: “Come on Barbie, let’s go party.” The song ultimately made it onto the Top 40 music charts.

Arbitration of International Commercial Disputes
The general strength and momentum of the international marketplace accentuates the need to have clear rules for the resolution of international business disputes. Fortunately, since the challenges that face companies engaged in international business are not new, laws addressing the adjudication of the associated disputes have been created and continue to evolve.

Federal Arbitration Act
In 1925, President Coolidge signed into law the Federal Arbitration Act (FAA) which ensured the validity of arbitration agreements evidencing a “transaction involving commerce.” In addition, the FAA precluded states from requiring disputants to litigate claims that the parties had previously agreed to arbitrate. As a result of this federal policy favoring arbitration, many states enacted their own arbitration statutes. In its early days, the FAA’s coverage of international business disputes was deemed perfunctory and inadequate.

Copyright Protection for Your Websites and Blogs
For creators of original content on the internet protection under law can feel inadequate for their electronic intellectual property. Because the web is open, pervasive, and information is so easily copied, plagiarism, copyright infringement and unauthorized reproduction are rife.

Copyright Registration, a process I outline elsewhere on this site [Link to Page] is a process that gives the best protection. Although you obtain copyright in your website the moment it is electronically published, I recommend that my clients take the following steps to give notice to would-be copyright infringers, to strengthen a court case and to help with evaluating damages if a lawsuit is filed.

Your Websites Terms and Conditions
If you have established a web presence with your own site you face the issue of posting Terms and Conditions appropriate to your content. You will need some kind of protective language, but what kind of language and how much? If you are not Google or Groupon, and you’ve created an informational, self-promotional or small business website, you probably need only a few pages of protections.

To create that language you have options. You could have a lawyer draft a simple Terms and Conditions approval clause for your website visitors. Or draft one our self and have a lawyer review it prior to posting.

Legal Consideration For Option/Purchase Of Life Rights
No one owns their life story. Personal facts, historical events, names, ideas and themes cannot be copyrighted. So, for a produce wanting to tell the story, in any medium, of someone either living or dead, it is not necessary to acquire life rights to their story in order to tell it.

That being said, there are some reasons to acquire life rights prior to developing a personal story, and to briefly list relevant and necessary considerations that need to be made prior to executing a life rights contract.

How The Hurt Locker Case Put Life Rights in the Spotlight
In March of 2010, Master Sgt. Jeffrey S. Sarver sued the makers of the film The Hurt Locker, alleging the movie was based on his life without his consent, thus misappropriating his likeness, infringing his rights of publicity, and cheating him out of participating in the film’s financial success. In response, the filmmakers filed an anti-SLAPP motion in California district court asserting that Sarver’s lawsuit constituted an impingement of free speech, and they succeeded.

(Sarver also made several other claims, such as defamation, breach of contract, and fraud, but, here, we are looking at the life rights issues related to the alleged misappropriation of a person’s identity and experiences.)

In February of 2016, the lower court’s decision was upheld by the Ninth Circuit Court of Appeals, concluding that “The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals ordinary or extraordinary—and transforms them into art…”

Why Attorneys Want You To Have Contracts
All attorneys want clients —- and all attorney want their clients to have contracts. While the good contract sets out the who, what, where, how, and how long, it also provides for what do you do if the what, why, how and how long are not fulfilled. As much as the actual piece of paper is important, the thinking that goes into getting to the paper is even more important. If you are going to create a contract AND EVEN IF YOU ARE NOT, you need to work through the points that are usually included in a contract.

For example, you are a burgeoning theatre group and you want to rent a theatre space for a month long series of weekend performances. You approach someone in the office of the theatre. They take you on a tour of a large theatre, a small theatre and some rehearsal space. You make a deal to rent the small theatre for $200. You are enough of a negotiator to only pay $100 now and $100 on the last day of performance. (You need the box office!) You feel like you have covered your bases, but what kind of contractual thinking haven’t you done?

You Don’t Get Something For Nothing
“You get what you paid for,” “there’s no free lunch,” “free advice is worth exactly what you paid for it.” At some point, some friend or family member has said each of these things to you, or you have said it to them. And, they’re times and situations when each of the statements above are true. At no time is the concept that “you don’t get something for nothing” more true than when putting together a contract.

If you are the producer, director, project manager or organizer of a creative project with a limited budget, I’m sure you feel there is nothing better than working out a deal where someone will work on your project for free. The offer of free editing, or props, or space, or set design work is music to your ears when you’re trying to find enough in the budget to get everything done. So, when someone volunteers to do something for free, you jump at the chance and write an agreement that goes something like this: “Mary will edit Joe’s Fabulous Project. Mary will provide 25 hours of editing using her own editing equipment (the “Services”). The Services will be complete and a finished master will be delivered to Joe no later than April 15, 2012. The fee for the Services will be $0.”

Deferred Compensation
For those of you who grew up watching Popeye cartoons, you will remember a character named Wimpy. Wimpy’s favorite line was “I’d gladly pay you Tuesday for a hamburger today.” The idea of eating your hamburger today and paying on Tuesday is the essence of deferred compensation. In the Popeye cartoons it looked like Wimpy was a master of deferred compensation. Unfortunately, all of the things you need to think about when setting up a deferred compensation agreement are not present in the simple statement “I’d gladly pay you Tuesday for a hamburger today.” But, let’s first look at the ones that are.

First there is the Who. Every contract for deferred compensation should set out the parties. Here the parties are Wimpy and you. Then, there is the hamburger, and the hamburger represents product or a service that someone is willing to give now in consideration of payment at another time. So we have the What. But could the What be more clear. Is the hamburger – with cheese, without cheese, with extra pickle, how about bacon?